BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE: 16/12/2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition (MD) No.12566 of 2009 and M.P.(MD) No.1 of 2009 M/s.Sirius Zip Fasteners (P) Ltd., Represented by its General Manager Korath Kurian, C-22, SIPCOT Industrial Complex, Manamadurai, Sivagangai District. .. Petitioner Vs 1.The Assistant Commissioner (CT) (FAC), Sivagangai. 2.The Sales Tax Appellate Tribunal (AB) Madurai . .. Respondents Prayer Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus, calling for the records on the file of the respondent in TNGST No.5400522/2005-06, dated 27.10.2009, and quash the same as illegal, arbitrary and direct the respondent to defer his further assessment proceedings till the disposal of the appeal filed before the 2nd respondent Sales Tax Appellate Tribunal (AB), Madurai in MTMP No.150 of 2008. !For Petitioner ... Mr.A.Thiagarajan ^For Respondents ... Mr.S.C.Herold Singh Government Advocate :ORDER
This writ petition has been filed praying for a writ of Certiorarified
Mandamus, challenging the assessment order of the first respondent, dated
27.10.2009.
2. It has been stated that the petitioner is a manufacturer of zip
fasteners and an assessee on the file of the respondent. The petitioner had,
originally, reported a total taxable turnover of Rs.2,42,84,509/-, for the year
2005-06. Based on the verification of accounts, the first respondent had
determined the total taxable turnover of Rs.4,15,87,830/-, by stating that the
petitioner had purchased the raw materials, like zinc alloy, from local dealers,
against Form XVII, under Section 3(3) of the Tamil Nadu General Sales Tax Act
and had manufactured Zinc Sliders, which are an integral part of the Zip
fasteners and had transferred the same to the petitioner’s Bangalore Branch.
The respondent had rejected the Form XVII, submitted by the petitioner and had
levied higher rate of tax, along with penal consequences, under Section 23 of
the Tamil Nadu General Sales Tax Act. The said order had been passed by the
first respondent, on 14.12.2007.
3. Therefore, the petitioner had filed an appeal before the Appellate
Deputy Commissioner (Commercial Tax), Virudhunagar, challenging the order of the
first respondent, dated 14.12.2007. By an order, dated 22.08.2008, the said
authority had set aside the order passed by the first respondent, on 14.12.2007,
and had remanded the matter back to the first respondent for a fresh assessment
and for further orders. Thereafter, the first respondent had issued a notice,
dated 03.07.2009, to the petitioner asking the petitioner to file the
objections, if any. The petitioner had filed the necessary objections, on
31.07.2009. Further, the petitioner had requested for a personal hearing and
for submission of certain documents, to substantiate his claims that the total
turnover is less than what had been assessed by the assessing authority.
However, the first respondent, without affording an opportunity of personal
hearing to the petitioner and without granting time to the petitioner to submit
the necessary documents, had passed the impugned order, dated 27.10.2009. In
such circumstances, the petitioner has preferred the present writ petition,
under Article 226 of the Constitution of India.
4. The learned counsel appearing on behalf of the petitioner had placed
reliance on a decision of this Court, dated 08.09.2008, made in W.A.Nos.893 and
894 of 2008, wherein the Division Bench of this Court had held that a reasonable
opportunity is to be given to the parties concerned, before the revision of
assessment is made, under the relevant provision of the Tamil Nadu General Sales
Tax Act.
5. The learned counsel had submitted that it would suffice if the impugned
order of the first respondent, dated 27.10.2009, is set aside and if the matter
is remitted back to the first respondent to pass appropriate orders after
affording a personal hearing to the petitioner and based on the documents relied
on by the petitioner to support the claims made on its behalf.
6. The learned Government Advocate appearing on behalf of the respondents,
on instructions, had submitted that the respondents have no objection for this
Court passing such an order.
7. In view of the submissions made by the learned counsels appearing on
behalf of the petitioner, as well as the respondents, the impugned order of the
first respondent, dated 27.10.2009, is set aside and the matter is remitted back
to the first respondent to pass orders, afresh, after giving an opportunity of
personal hearing to the petitioner Company and by permitting the petitioner
company to file the necessary documents relied on in support of its claims. The
first respondent is to pass appropriate orders, after making as assessment,
based on the personal hearing given to the petitioner and on considering the
documents submitted on behalf of the petitioner, as expeditiously as possible,
not later than four months, from the date of receipt of a copy of this order.
The petitioner shall co-operate in the enquiry to enable the first respondent to
pass necessary orders, as directed by this Court, by this order.
8. The writ petition is disposed, with the above directions. No costs.
Consequently, connected miscellaneous petition is also closed.
cs
To
1.The Assistant Commissioner (CT) (FAC),
Sivagangai.
2.The Sales Tax Appellate Tribunal (AB)
Madurai .